About Me

Buford C. Terrell
Controlled substances laws and their consequences have been the center of my professional life for over fifteen years. I host a public interest television program in Houston, “Drugs, Crime, and Politics” , produced by the Drug Policy forum of Texas, and have done so for most of its ten-year history. Before my retirement, I taught a seminar, “Controlled Substances Law” for many years at South Texas College of Law.
In this blog I intend to explore the features and consequences of those laws, especially the unintended consequences, and look at the need for, and possibility of, changing them. Don’t expect a lot of breaking news or current events, although there will be some. My approach will be more historical and theoretical. I hope to get a lot of criticism – good, bad, and otherwise – and to start some good, heated discussions.

Wednesday, July 24, 2013

Reforming Federal Marijuana Law

Reforming
Federal Marijuana Law

More
and more congressmen seem willing to discuss the issue of some move toward
relaxing marijuana Prohibition, and the House version of this year’s farm bill
even has a provision allowing universities to do research on industrial
hemp.The time is ripe to consider what
the best restructuring of federal marijuana law would be.At least four broad possibilities (each of
which could have wide variations in detail) come to mind.In addition, many other statutes only
indirectly related to marijuana would need to be conformed to the overall
reform.

The
four basic approaches to reform are 1) recognize and accept state law reforms,
2) move marijuana from the Controlled Substances Act to the Dietary Supplement
Health and Education Act, 3) enact a specific federal marijuana act, and 4) amend
and restructure the Controlled Substances Act.Any of the four could be reasonably effective, but each has its own
particular benefits, limitations, and costs.Each will be discussed in turn.

Additionally,
many federal statutes and programs have either explicit or implicit
consequences for marijuana use or distribution.Only a few of these can be highlighted here, but all federal statutes
will have to be nit-combed to remove or mitigate these consequences.

Simply
recognizing state actions in passing their own marijuana laws would be the
least controversial and the simplest way for the federal government to
disengage from criminalizing marijuana. However, this approach still leaves a major
obstacle on the road to open, full medical use.The FDA would still remain a formidable, almost impassable block to
routine use by doctors and patients; and no clear, affordable path to FDA
approval – necessary for sale or prescription for medical use – seems possible.Any effective statute recognizing state laws
must have an explicit exemption from FDA regulation so long as the product does
not leave the state.

A
better approach, and almost as politically safe for congress members, would be
simply to move marijuana from the Controlled Substances Act to the Dietary
Supplements Health and Education Act ( see my earlier “Marijuana: Drug or Herb?”
posting).This change would allow
marijuana to be sold like other botanical preparations and replace pre-marketing
FDA approval with FDA after-sales policing of deceptive marketing practices. States would still be allowed to regulate
subsidiary issues like sales to youths and impaired driving.Since some controls would still exist, this
approach would arguably satisfy United States treaty obligations.

Congress
could write a separate marijuana statute, removing oversight of it from the DEA
and NIDA and bypassing some of the more stringent FDA requirements.The difficulty with this approach is the
political near-impossibility of getting congress to do anything
substantial.However, a separate act
could accomplish several things that less drastic forms will not do.One of the most beneficial would be to
protect various strains and cross-breeds developed by growers, similar to the
way the Plant Protection Act protects developers of new strains of food, fiber,
and ornamental plants.A buyer selecting
a BubblegumKushDeiselSkank would know exactly what she was getting.Hemp could be supervised and encouraged by
the Department of Agriculture just like cotton is and hemp oil could get the
same kind of encouragement as a fuel as ethanol does.The list could go on and on.

Drastically
amending the CSA, or even repealing it, is an ultimate goal of drug law reform,
but as a method of taking the first step of uncriminalizing[1] marijuana, it is
problematic.The approach so far has
been to reschedule marijuana under the Act, probably moving it to Schedule II,
but that move would only place marijuana in the same legal status as morphine,
methadone, OxyCotin, cocaine, and methamphetamine.Even if it were moved to Schedule V, where it
probably belongs, and where it could sold (if it could be sold at all) without
a prescription, lack of FDA approval and DEA regulations on manufacturing,
distribution, inventory, and security would still block effective use.Simply removing marijuana from the definition
of drugs covered by the CSA would then require that congress take some further
action like those described above.

Massive
reform of the CSA is needed, but whether that should be coupled with immediate
marijuana legalization is questionable.The most important reform should be to impose separation of power and
checks on balances on the act by separating rule-making and enforcement
powers.This kind of separation has
already been effectively applied to both the old Atomic Energy Commission and
to the FAA and the old ICC, with separate regulators and enforcers established.
The rule-making (including scheduling
decisions) so be removed from the DEA and the Justice Department and
transferred to the Institutes of Health, under Health and Human Services.The DEA would remain as strictly a police
agency.At the same time, NIDA should be
dissolved and its duties distributed among the other, and more appropriate, NIH
institutes.

Additionally,
the CSA schedules should be redone.Schedule I should be eliminated and all the drugs currently in it moved
to Sched. II. This consolidation would allow experiments and experimental use,
not just of marijuana, but also heroin, MDMA, LSD, and many of the other
psychedelics.Schedules III and IV
should be combined, as they were in the original draft of the Act, since no
real distinctions between these schedules exist.

Whatever
method of marijuana law reform is chosen, much clean-up work will be
necessary.Mountains of federal laws
contain myriads of marijuana restrictions.A partial list would include the tax code, banking regulation, asset
forfeiture, employment drug testing, public housing restrictions, aid to
college students, limitations on colleges and universities receiving grants,
loans, and research contracts, … .The
list goes on and on.Some of these may
be rectified simply by making marijuana legal to possess, but many will have to
be explicitly rewritten.

Marijuana
law reform is rapidly becoming inevitable, but the form it takes is as
important as the action of repeal itself.Unless all concerned concentrate on what the future will be, few of them
will like the outcome.Now is the time
for serious discussion and planning.The
future is at stake.

[1] I’m
using this ungrammatical neologism because recent usage has limited “decriminalization”
to the removal of criminal penalties only from the personal possession of small
amounts of marijuana while allowing strong criminal sanctions to all other
marijuana activity.

3 comments:

Changing the law is a great idea, but not very likely to happen soon. I think the better approach is to remove marijuana from schedule I because it now has accepted medical use in treatment in 19 states (in the United States), and then move it right down the schedules for its extremely safety profile.